us supreme court: 03-339

8/14/2019 US Supreme Court: 03-339

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1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - -X

3 JOSE FRANCISCO SOSA, :

4 Petitioner :

5 v. : No. 03-339

6 HUMBERTO ALVAREZ-MACHAIN, :

7 ET AL.; :

8 and :

9 UNITED STATES, :

10 v. : No. 03-485

11 HUMBERTO ALVAREZ-MACHAIN, :

12 ET AL. :

13 - - - - - - - - - - - - - - - -X

14 Washington, D.C.

15 Tuesday, March 30, 2004

16 The above-entitled matter came on for oral

17 argument before the Supreme Court of the United States at

18 11:05 a.m.

19 APPEARANCES:

20 PAUL D. CLEMENT, ESQ., Deputy Solicitor General,

21 Department of Justice, Washington, D.C.; on behalf of

22 Petitioner the United States.

23 CARTER G. PHILLIPS, ESQ., Washington, D.C.; on behalf of

24 the Private Petitioner.

25 PAUL L. HOFFMAN, ESQ., Venice, California; on behalf of

1Alderson Reporting Company, Inc.

1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005



1 the2 Respondents.345678910111213141516171819202122232425





1 C O N T E N T S2 ORAL ARGUMENT OF PAGE3 PAUL D. CLEMENT, ESQ.4 On behalf of Petitioner the United States 45 CARTER G. PHILLIPS, ESQ.6 On behalf of the Private Petitioner 227 PAUL L. HOFFMAN, ESQ.8 On behalf of the Respondents 399 REBUTTAL ARGUMENT OF10 PAUL D. CLEMENT, ESQ.11 On behalf of Petitioner the United States 761213141516171819202122232425





1 P R O C E E D I N G S2 (11:05 a.m.)3 CHIEF JUSTICE REHNQUIST: We'll hear argument4 next in No. 03-339, Jose Francisco Sosa v. Humberto5 Alvarez-Machain, and the United States v. the same.6 Mr. Clement.7 ORAL ARGUMENT OF PAUL D. CLEMENT8 ON BEHALF OF PETITIONER THE UNITED STATES9 MR. CLEMENT: Mr. Chief Justice, and may it10 please the Court:11 The Ninth Circuit found that the arrest at issue12 here was one unauthorized, false, and in violation of13 international law because it occurred in Mexico. 14 Nonetheless, the court found inapplicable the exception in15 the Federal Tort Claims Act for claims arising in a16 foreign country. 17 At the same time, the court read the bare18 jurisdictional terms of section 1350 in title 28 to19 provide courts with the authority to infer causes of20 action from sources of customary international law,21 including treaties that the political branches have22 expressly refused to ratify.23 The resulting decision, which reads express24 grants of executive authority narrowly and implied grants25 of judicial authority broadly, turns the established





1 separation of powers regime for dealing with international2 issues on its head. 3 The Ninth Circuit first construed executive4 authority narrowly by holding that the DEA agents lacked5 the authority to effect an arrest in Mexico or abroad. 6 That decision -- that holding has several problems, not7 the least of which is that by its terms it would preclude8 Federal agents from making an arrest abroad even in9 circumstances where the foreign country consents or there10 is no foreign government that is functioning to provide11 consent.12 QUESTION: Mr. Clement, you -- you have a number13 of strings to your bow. Is -- is one of them more14 important than the others?15 MR. CLEMENT: Well, regrettably -16 QUESTION: I mean, it -- it's unlikely that17 we're going to go through the whole list of your -- your18 reasons for reversing here and say you're right on every19 one. If we -- if we pick one, is there one that is -20 that is more important to the Government than the others?21 MR. CLEMENT: Well, regrettably, Justice Scalia,22 this is the rare case where I think they really are of23 quite significance because what the Ninth Circuit has held24 is, on the one hand, Federal agents, including the FBI,25 would lack the authority to make arrests abroad. They've





1 also ruled in a way that I think really reads the foreign2 country exemption out of the Federal Tort Claims Act and3 then, of course, on the 1350 issue, that is an issue of4 tremendous importance to the Government and also to the5 broader community. So I guess if -6 QUESTION: That's not your -- you're just7 arguing the Federal Tort Claims Act first. Is that -- in8 -- in this argument that we're hearing now, we're dealing9 with the Federal Tort Claims Act and not 1350?10 MR. CLEMENT: I actually intend to cover them11 both in -- in my initial period. Now, Mr. Phillips is12 going to be covering just 1350 because that's the only13 issue that affects his client. But the United States is14 both the petitioner in the case that raises the Federal15 Tort Claims Act issue, but also a respondent in support of16 petitioner with respect to 1350. So it's an ambitious17 goal in -- in 25 minutes, but I hope to address them both.18 QUESTION: Well, getting back to Justice19 Scalia's question, I -- I suppose the President or the20 Attorney General could make an order with respect to21 extraterritorial arrests, and that would eliminate one22 rationale of the court of appeals. Or am I wrong about23 that?24 MR. CLEMENT: Well, I think you are wrong about25 that, Justice Kennedy, because as I read the ruling of the





1 Ninth Circuit, they say that the President, the executive,2 the Attorney General lack the authority to make an3 extraterritorial arrest, and they specifically -4 QUESTION: I guess you would have to get to that5 issue first.6 MR. CLEMENT: That's right. Now, I think -7 QUESTION: And they said even if it had the8 authority, it -- it has to be from a high official.9 MR. CLEMENT: That actually wasn't the -- the10 reasoning of the majority opinion. There's a concurrence11 by, I think, five of the six justices in the majority that12 said at a minimum you'd need a high-ranking official, but13 the majority opinion that's the law of the Ninth Circuit14 is that regardless of who approves the operation, the15 President categorically lacks that authority. And that's,16 of course, the -17 QUESTION: Were -- were the majority -18 QUESTION: Mr. Clement, may I ask you? Is -- am19 I correct in thinking if we agree with you on -- on that20 issue, that disposes of the entire case?21 MR. CLEMENT: I -- I think that's correct,22 Justice Stevens. Now, I would say that it -- the other23 issues in the case are logically in some respects anterior24 to that question, especially because the -- for example,25 the section 1350 really is a question about the -- the





1 very jurisdiction of the courts.2 QUESTION: Yes, but you certainly don't have to3 address that if you think they're wrong as a statutory4 matter, that there -- there, in fact, was no arbitrary5 arrest here. 6 MR. CLEMENT: That's exactly right, Justice7 O'Connor. There's no way I can tell you that you have to8 address those other issues.9 QUESTION: No, no.10 MR. CLEMENT: I think, though, there's nothing11 that would stop the Court from addressing those issues,12 and those -13 QUESTION: Well, we'd have to be pretty14 ambitious because some of them weren't addressed below and15 they're contrary -- the position being taken today is16 contrary to the position taken by previous Solicitors17 General. I mean, it's kind of a new question. I'm not18 sure it was even raised and argued below.19 MR. CLEMENT: Well, we think it was raised and20 argued below, Justice O'Connor, and I think the 1350 issue21 is of tremendous continuing importance. 22 I mean, if I could -- if I could address the23 point that you raised about the change in position. It is24 true that the United States in the Filartiga case took a25 different position. Now, subsequent that -- to that, the





1 administration has -- different administrations have taken2 the position that 1350 is just jurisdictional.3 And if I could draw an analogy to the experience4 that this Court has had, in 1947 this Court upheld the5 constitutionality of State statutes that provided6 reciprocity in inheritance laws with foreign countries and7 said that was okay. 21 years later, with the -- sort of8 benefit of hindsight and the experience with State court9 judges causing foreign policy problems, this Court in the10 Journing case revisited that decision. And in a similar11 way, I think the 20-years-plus experience that we've had12 with the Filartiga regime has made it quite clear that13 these lawsuits provide tremendous problems for the foreign14 policy interests of the United States.15 And at the same time, in the intervening -16 intervening period, if anything, this Court has made it17 quite clear what the proper mode of finding a cause of18 action is and the proper way to read a jurisdictional19 provision. 20 QUESTION: As to your first, the tremendous21 problems, how many lawsuits are there of this 1350 nature22 and how many have even gone to judgment? 23 MR. CLEMENT: Justice Ginsburg, regrettably, I24 don't have the numbers on those.25 But I think one thing that's important to





1 emphasize is that the case doesn't have to go to judgment2 to create potential foreign policy problems for the United3 States. And to give you just one example, there's4 litigation that's ongoing -- hasn't gone to judgment. 5 It's quite preliminary -- in New York right now, where6 people are seeking compensation for abuses that occurred7 during the apartheid regime in South Africa. Now, the8 Government of South Africa itself, of course, has a very9 different mechanism for dealing with those issues, the10 truth and reconciliation process. 11 And the Government of South Africa has formally12 protested at the highest levels that these issues that are13 very difficult issues for that government and that14 government is dealing with are the subject of litigation15 in the United States courts. And I think what you see is16 time and time again you have private litigants that may be17 very well intentioned but are focused on only a single18 issue and they are bringing that issue into the courts,19 creating foreign policy problems for the executive branch20 which the executive branch then has to try to remedy and21 ameliorate. 22 At the same time, in the process of those23 lawsuits, you have courts making pronouncements on24 principles of international law and customary25 international law that may well be at variance with the





1 views of the executive branch or -2 QUESTION: Has Congress been asked to take a3 look at the statute and to amend it or -- or restrict it4 in some fashion, 1350?5 MR. CLEMENT: I'm sure there have certainly6 been -7 QUESTION: Are there bills introduced to do8 that?9 MR. CLEMENT: I don't know that any bills are10 pending, but I do think that Congress is certainly fully11 able to deal with this situation.12 QUESTION: Well, I think so. 13 (Laughter.) 14 MR. CLEMENT: Definitely, and -- and -- but I15 think when Congress does deal with this situation and16 actually provides for a cause of action, that provides a17 much better solution to this problem. And I think if I18 could point to the Torture Victim Protection Act as an19 example of what happened -20 QUESTION: That's all -- that's a good example21 of where Congress took action. I -- I just wonder if it22 isn't wise to look at the underlying statutory grounds23 relied upon by the Ninth Circuit and deal with it that way24 and let Congress have a look at this thing. And I'm sure25 Congress would be interested in the views of the Attorney





1 General and others who think it's a concern.2 MR. CLEMENT: Again, Justice O'Connor, I mean, I3 can only repeat that there's nothing that would stop this4 Court from resting its decision only on the5 extraterritorial authority question and that would6 certainly be a significant correction of the law because7 the Ninth Circuit has left us -8 QUESTION: But, Mr. Clement, on that -- on that9 point, your point that there must be another Federal10 statute enacted creating a cause of action, because this11 is purely jurisdictional, I have yet to find any judge12 who's taken that position. Even Judge Bork doesn't take13 that position.14 MR. CLEMENT: Well, I think that -- that -- I15 don't know that Judge Randolph in his separate opinion in16 the Al-Odah case expressly -- if you can tell exactly17 where he would come down on that. I -- I actually read18 his opinion as consistent with the position we're urging,19 but I of course may have an interest in doing so.20 I would say this, though, that I think that if21 you read this Court's precedents for dealing with a cause22 of action -- in finding a cause of action, there's no23 question that the 1350 is applied pursuant to those modern24 principles -25 QUESTION: Well, I understand all the cases





1 since Cort against Ash support you, but we're construing a2 statute enacted a long, long time ago, and there was all3 sorts of -- of opinion to the effect that there were at4 least two or three causes of action that did not need to5 be severally created: privacy, protecting ambassadors,6 and so forth. You remember the three examples even Judge7 Bork recognized. If that's right, then your fundamental8 position is -- is totally unsupported by judicial opinion.9 MR. CLEMENT: Well, with respect, Justice10 Stevens, let me take that in a couple of steps. First of11 all, I mean, certainly Judge Bork thought that maybe those12 original causes of action would be actionable in Federal13 court at the time.14 Now, first of all, to make clear, what the first15 Congress did is rather than pass any kind of tort action,16 it dealt with those three very offenses against the law of17 nations and dealt with them criminally. Now, it may be18 that what Judge Bork had in mind is that at the time of19 the framing, as a matter of general common law in the pre20 Erie sense, it might have been possible to get into21 Federal court and raise those three violations against the22 law of nations as a tort action. I don't think, however,23 that authority would survive Erie in any event, and I24 think it raises some questions of its own.25 Now, I think you're absolutely right, though,





1 Justice Stevens, to say that the one objection you would2 have to applying straightforwardly the principles that3 this Court has adopted in cases like Cort against Ash and4 Sandoval is that this statute was passed at a much earlier5 time and where the -- the enacting Congress may have had6 different assumptions in mind. 7 But this Court has made clear that it's not8 going to sort of tether its analysis to what assumptions9 the enacting Congress might have had in mind. It did so,10 of course, in the Sandoval decision. But you did so11 yourself, Justice Stevens, in your separate opinion in12 California against Sierra Club where you said that it may13 very well have been that the Congress in 1890 that passed14 the Rivers and Harbor Act probably assumed there would be15 a cause of action in court, but you said it was more16 important to apply the principles of Cort against Ash in17 that case than to try to divine the intent of an enacting18 Congress from 100 years earlier. 19 QUESTION: Well, what about the cues that you20 get from the Torture Victim Protection Act? When Congress21 had 1350 right next to it and there's not a word in -- in22 that legislative history, it -- it seems to be a model. 23 Yes, this is a good thing, but it's -- it's -- we want to24 make it really clear that torture is a crime against25 humanity and we want to include U.S. citizens as





1 plaintiffs as well. But they didn't say anything2 questioning 1350.3 MR. CLEMENT: Well, Justice Ginsburg, if I could4 just make sure that there's one fact that's on the table,5 which is you said that they -- that Congress effectively6 had the provisions side by side, and I think it is worth7 noting that although the Torture Victim Protection Act is8 now codified as a note to 1350, that was not a decision9 Congress made. That was just a codification decision. So10 Congress itself didn't say insert in the code after11 1350 -12 QUESTION: But there was discussion of 1350 by13 the proponents of the Torture Victim Protection Act.14 MR. CLEMENT: There certainly was and I think15 that -- that basically the enactment of Congress is -16 sort of says nothing about 1350 one way or another. What17 I would point to the Torture Victim Protection Act,18 though, is a model of why it makes sense to ask Congress19 to get involved in creating a cause of action because when20 it does, it provides clear direction to the court and also21 acts in a way that minimizes tensions with allies because22 you're absolutely right to suggest that torture is one of23 the most well-established norms of international law. 24 Yet, notwithstanding that, when Congress addressed the25 issue in the TVPA, it provided specific definitions of the





1 prohibited conduct. Then it also provided clear guidance2 to the lower courts by providing for a specific statute of3 limitations of 10 years.4 And then, as I also indicated, it -- it put in a5 specific statutory exhaustion provision which suggested6 that litigants shouldn't rush to United States courts if7 the courts in the area where the events actually took8 place are open for the claims. I think that last9 provision is particularly telling because it shows that10 when you take the normal course and insist that Congress11 get involved in the process of creating causes of action,12 Congress as a political branch with foreign affairs13 responsibilities of its own -14 QUESTION: But, Mr. Clement, if I -- if I15 remember, some of the briefs have taken the position that16 that's already an aspect of international law, a17 requirement that you should first exhaust in the country18 where the conduct took place, which would -- would narrow19 the scope of the statute if we -- if we adopted that view.20 MR. CLEMENT: Well, Justice Stevens, there21 certainly are international jurists that will argue that22 exhaustion principles are a principle of international23 law. But I think that's exactly what ends up happening if24 you leave these issues to the courts and don't insist on a25 cause of action is you leave the courts as a matter of





1 Federal common law, I guess, trying to interpret2 international law sources to come up with things like3 exhaustion. A statute of limitations I would think would4 be even more difficult. Principles of damages. And5 they're supposed to do all of that as a matter of Federal6 common lawmaking with the only guide they have in the text7 is the 33 words in 28 U.S.C. 1350 which, by their terms,8 really only address jurisdiction. So I think that would9 put the courts in a very difficult position, and I think10 in contrast, the Torture Victim Protection Act shows the11 virtues of waiting for Congress to take some action before12 somebody would get involved in this kind of situation.13 QUESTION: But in the -- in the --14 QUESTION: -- on 1350 address the question of15 the authority of the DEA agents to make the address, and16 if you have time, the Federal Tort Claims provision that17 it's governed by events that occur abroad as opposed to18 the headquarters doctrine.19 MR. CLEMENT: Yes, Justice Kennedy, and thank20 you. 21 Let me start with the -- the arrest authority22 question because, as I said at the outset, the view of the23 Ninth Circuit is that there is categorically no arrest24 authority abroad, even if a foreign nation consents. And25 that really cannot be correct. And I think respondent





1 recognizes that implicitly by not defending that aspect of2 the Ninth Circuit ruling, but rather insisting on a rule3 that would give arrest authority only with consent.4 And with respect, though, I think that is not a5 workable rule for the Federal courts, and if I could use,6 by way of example, the arrest of the individual who's the7 convicted killer in the CIA shootings, Mir Aimal Kasi. 8 This is an individual who was arrested by FBI agents in9 Pakistan in 1997. Under the Ninth Circuit's approach,10 obviously, this individual could not be arrested by FBI11 agents as a categorical matter. But under the approach of12 respondent, the Federal courts would have to inquire into13 the circumstances surrounding the arrest and to inquire14 specifically into whether the Government of Pakistan15 consented to the arrest by FBI agents in Pakistan in 1997.16 Now, I think the prospects for interfering with17 sensitive diplomatic relations, not to mention the18 difficulty of divining any principles for discerning the19 requisite degree of consent, are manifest in both those20 cases, and I would suggest that the far better approach is21 to read section 878 of title 21, consistent with its plain22 terms, to give the DEA the arrest authority for any felony23 cognizable under the laws of the United States without24 reading in either a territorial limitation or a limitation25 based on consent.





1 QUESTION: Doesn't the Mansfield Amendment tug2 the other way? That was -- when Congress looked at this,3 they restricted DEA agents' authority, not granted it.4 MR. CLEMENT: With respect, Justice Ginsburg, I5 actually think the Mansfield Amendment supports the view6 of the United States here, and indeed, under the view of7 the Ninth Circuit, it's entirely unclear what the8 Mansfield Amendment was supposed to accomplish. It was9 under their view limiting an authority that did not exist10 because what the Mansfield Amendment does is put specific11 limitations on the authority of Federal agents. It12 applies only to direct arrests, only to foreign police13 actions, and only in the context of narcotics control14 efforts. And then even there it provides specific15 exceptions for exigencies and the like. And so I think16 what that reflects is that there may be circumstances17 where an extraterritorial arrest authority raises concerns18 and Congress may react to those, as it did in the19 Mansfield Amendment, but the very fact that there is this20 specific and tailored limitation on DEA authority suggests21 that there must be some broader grant of authority that22 includes extraterritorial arrests.23 QUESTION: But isn't -- isn't it possible to24 read -- and I'm not sure it should be read this way, but25 isn't it possible to read the Mansfield Amendment as





1 simply saying DEA agents should not go out in foreign2 police raids when the police of the foreign countries make3 the raids. Stay out of it. That's one way to read the -4 the foreign police action qualification.5 MR. CLEMENT: That's certainly -- that is one6 way you could read it, Justice Souter. And I think7 there's two implications from that. One is, of course, if8 that's the way you read it, the Mansfield Amendment9 certainly doesn't bar the action here.10 QUESTION: It doesn't -- but it doesn't imply11 anything one way or the other. 12 MR. CLEMENT: Right. But here's why I think it13 still implies something about the scope of section 87814 because section 878 of title 21 is not just the authority15 for the DEA to make arrests, it's basically the source of16 all their statutory authority for law enforcement efforts. 17 And I think that even participation in the midst of a18 foreign police action, as you were envisioning the19 reference in the Mansfield Amendment, is at least a law20 enforcement involvement of the DEA. And so I think that21 unless 878 authorizes extraterritorial actions by DEA22 agents, be it arrests, be it simply carrying a firearm, or23 be it engaging in other investigatory activities, then so24 too I think the language of the Mansfield Amendment, even25 if it limits the very specific kind of law enforcement





1 activity by the DEA, still suggests that 878 by its terms2 is not strictly limited to the territory of the United3 States. 4 QUESTION: Of course, you get there by assuming5 that anything that the DEA does is law enforcement.6 MR. CLEMENT: That's a fair point, but I think7 even if that's a bit of a broad conception, I certainly8 think assisting in the context of a foreign police action9 should qualify as law enforcement. 10 If I could say just a -- a few things about the11 foreign country exemption before I sit down. I think that12 there is a very clear error in the analysis of the Ninth13 Circuit because this is really a -- a rare case where you14 have an arrest that is false and tortious only because it15 occurred in Mexico. You have the lower courts recognizing16 that the plaintiff is entitled to damages only for the17 period he was in Mexico, and every element of the tort18 took place in Mexico. Yet, nonetheless, somehow the court19 applies this headquarters doctrine to say that the foreign20 country exception applies.21 And I think what that illustrates is that22 although the headquarters exception may have been a23 helpful gloss on the language of the statute when it was24 first developed, as it's been interpreted by the Ninth25 Circuit, it becomes a free-floating exception to the -- to





1 the foreign country exception that allows a plaintiff to2 skirt the language of the statute simply by alleging any3 degree of U.S. involvement or direction. 4 If I could reserve the remainder of my time for5 rebuttal. Thank you. 6 QUESTION: Very well, Mr. Clement.7 Mr. Phillips, we'll hear from you.8 ORAL ARGUMENT OF CARTER G. PHILLIPS9 ON BEHALF OF THE PRIVATE PETITIONER10 MR. PHILLIPS: Mr. Chief Justice, and may it11 please the Court:12 I guess I'd like to begin, Justice O'Connor,13 with your question about whether or not this is an issue14 that the Court ought to -- the -- the underlying question15 of the meaning of the section 1350 is an issue the Court16 ought to resolve as opposed to the narrower -17 QUESTION: Or whether we have to.18 MR. PHILLIPS: Well, you clearly don't have to,19 and -- and certainly Jose Francisco Sosa would be20 perfectly content to have the judgment of the court of21 appeals reversed on the ground that the arrest here was22 neither arbitrary nor the detention prolonged in a way23 that would no -- under no circumstances violate the law of24 nations.25 But the truth is, as one of the amicus briefs





1 for the respondents points out, there are at least 352 cases that they cite in their briefs that have been filed3 under section 1350. Those causes of action involve, each4 one, numerous individual defendants. There is a5 significant reason I think for this Court to try to6 provide some additional guidance to the lower courts with7 respect to the meaning of section 1350, particularly when8 the rules of construction, as Justice Stevens quite9 rightly pointed out, so clearly point in a particular10 direction. This is a purely jurisdictional statute. It11 says it in so many terms.12 The only language that the respondent embraces13 as suggesting that it's not purely jurisdictional is the14 word violation, a word this Court specifically recognized15 in Touche Ross is not a rights-creating term, but instead16 again merely provides jurisdiction. This Court has17 repeatedly held that when you have merely jurisdiction,18 you do not imply a cause of action. That's the -- the19 Montana-Dakota Utilities decision of the Court. Obviously20 that's embedded in Sandoval. 21 QUESTION: Well, there are indications early in22 the country's history that it was viewed differently at23 the time of its adoption, and the -- an Attorney General24 early on took that view. It -- it's not easily answered. 25 I -- I can understand how with the recodification where it





1 then is put in with other jurisdictional sections that it2 -- it looks somewhat different, but it's had a pretty long3 history.4 MR. PHILLIPS: But -- but, Justice O'Connor -5 QUESTION: And it's hard to ignore all that. 6 And it's so easily changed by Congress if indeed it is a7 problem. 8 MR. PHILLIPS: Well, I think the presumption9 ought to go the other way is that to the extent that the10 lower courts have created a problem, it would be incumbent11 upon the Court to try to fix that problem if that's an12 available option -13 QUESTION: You agree it's easily changed by14 Congress?15 MR. PHILLIPS: I'm sorry?16 QUESTION: You agree it's easily changed by -17 MR. PHILLIPS: Well, I don't think anything is18 easily changed by Congress these days. 19 (Laughter.) 20 MR. PHILLIPS: But -- but, Justice O'Connor,21 your -- your point brings to mind, frankly, Justice22 Frankfurter's observations in the Romero case about23 comparing the historical efforts here to archaeology and24 the -- and as one who has now spent the better part of the25 last 6 months on what struck me as a historical dig that





1 accumulated a whole lot of information, virtually none of2 which remotely provides me with any insights as to which3 the Congress of 1789 really had in mind at the end of the4 day, I think the Court would do extremely well here to go5 back to the first principles of statutory interpretation.6 I'm sorry, Justice O'Connor. 7 QUESTION: It probably had in mind problems of8 piracy.9 MR. PHILLIPS: Well, it clearly had in mind10 problems of piracy, but as even Blackstone made clear,11 problems of piracy are matters of public concern. They12 are not matters of private concern. And while it may well13 be that Congress did have in mind down the road that there14 may be subsequent enactments that would, in fact, invoke15 section 1350 as an exercise of jurisdiction -16 QUESTION: And then we have the case of the17 attack on the early diplomat and so on. I mean, it -18 it's had a long history.19 MR. PHILLIPS: Well, first of all, there's an20 interesting gap in that history because you go up till21 about 1807 and then nothing happens until 1982. So it's a22 little difficult to think that there are a whole lot of23 historians out there thinking that there was a clear basis24 for a cause of action tapping in to the law of nations and25 to those kinds of rights.





1 QUESTION: Maybe we didn't assault any2 ambassadors during that later period. 3 (Laughter.) 4 MR. PHILLIPS: I certainly hope we didn't. 5 QUESTION: But, of course, I -- most references6 to international law were in admiralty cases where there's7 jurisdiction anyway.8 MR. PHILLIPS: To be sure, absolutely. And that9 -- that's why --10 QUESTION: Yes, but not in the ambassador cases.11 MR. PHILLIPS: No.12 QUESTION: It was pretty clearly, it seems to13 me, one of the things that the statute would have covered14 for the assault of the French ambassador. 15 MR. PHILLIPS: It's not -- well, it's not 10016 percent clear to me because the -- the problem you have17 there is that it would clearly have been a public right18 and it was -- and, you know, the Congress in 179019 immediately passes a statute that -- that imposes criminal20 sanction for this. And indeed, Justice O'Connor, even in21 the -- even in the Pennsylvania case where it arose out of22 common law, it was a -- it was criminal action that was23 brought against the attacker on the -- on the ambassador. 24 It was not a civil action. No one sought damages.25 QUESTION: But, Mr. Phillips -





1 MR. PHILLIPS: This is a very unknown2 enterprise. 3 QUESTION: One of the -- one of the things that4 I keep bumping up against -- and I want to be sure you get5 an opportunity to comment on it -- that -- 1980, I guess6 it was, the Second Circuit got into the act and decided7 that case. So we've had 25 years, and we had a bunch of8 opinions. And I don't think a single Federal judge has9 taken the position that you're advocating.10 MR. PHILLIPS: Well, I don't -- I don't -- I11 don't disagree with it. I think that's absolutely true. 12 On the other hand, I don't think a whole lot of those13 judges gave quite as much thought or attention to this14 issue as the litigants before this Court have in this15 particular case. And the briefing here is obviously16 extraordinary both in its breadth and depth. And at the17 end of the day -- and -- and I don't think anybody tried18 to mine the historical materials in quite the same19 intensity as we have coming here. 20 And as I said -21 QUESTION: I thought -- I thought you'd probably22 have a -- a right to recover damages for piracy, wouldn't23 you have? I mean, wouldn't they have thought in 1789 you24 did?25 MR. PHILLIPS: Well, it's not clear, but if you





1 would have, it would have been under admiralty2 jurisdiction. 3 QUESTION: Well, admiralty and maritime law then4 I thought were viewed as a brooding omnipresence.5 MR. PHILLIPS: They were. They were.6 QUESTION: They weren't the law of Athens. They7 weren't the law of Constantinople. They weren't the law8 of Rome. They were the law of nations.9 MR. PHILLIPS: Well -10 QUESTION: And that -- that -- you can find lots11 of quotations along those lines. 12 So if in fact that was so then and you're13 looking for a modern counterpart, what's wrong with what14 the European Commission said? I'd be interested in having15 your views on that brief.16 MR. PHILLIPS: Well, let -- let me answer the17 first question because the difference between18 incorporating the law of nations from the -- into19 admiralty jurisdiction, it had a tradition of 1,000 years. 20 The idea of interpreting the law of nations or21 incorporating the law of nations into section 1350 or its22 precursor back then where it only benefits aliens seems to23 me a quite improbable undertaking by Congress in 1789.24 QUESTION: It would not be improbable in a world25 where law was a brooding omnipresence in the sky to think





1 that we preserve it in the case of admiralty, maritime,2 and certain instances of international law. But Erie3 sends it to the states once they decide to make that4 separation. That's an ex post event. That doesn't cast5 an idea in the minds of Congress. So if you have Congress6 ex ante thinking, of course, this is international, as7 they thought maritime law was, then our task is to try to8 translate that into modern terms. And that brings me back9 to the European Commission. 10 MR. PHILLIPS: But I -- I -- the difficulty I11 have with that, Justice Breyer, is I think this Court has12 rebelled from the idea that it's going to incorporate a13 massive brooding omnipresence -14 QUESTION: Not massive. Very limited.15 MR. PHILLIPS: But, see, I don't think -16 QUESTION: That's why I keep bringing up the17 European Commission. 18 MR. PHILLIPS: But, see, that's my problem with19 that -- with that argument because it doesn't -- I don't20 see what the limitation is, Justice Breyer. What we're21 dealing with is if you're saying the law of nations,22 customary international law, whatever that means -- and we23 know from the Ninth Circuit it doesn't have to be anything24 that the United States itself embraces. These are rules25 that are imposed upon us under these -- under these





1 circumstances. It would seem to me that if you're going2 to bring it into the modern era, you ought to bring it in3 with the recognition that there are core separation of4 powers concerns in this context that ought to -- ought to5 caution hesitation in exactly the same way -6 QUESTION: All right. I agree with you about7 that.8 MR. PHILLIPS: -- that the federalism principle9 was -10 QUESTION: So what -- what is -- what I got out11 of that brief -- and I refer to one, and I want to get12 your views on that -- is it wouldn't be difficult to have13 a limited cause of action, try to find the counterpart,14 and say, of course, if Congress preempts the field, as15 maybe it did with torture, that's out. Or if Congress16 implicitly is hostile to the cause of action, that's out.17 And if Congress is neutral and the State Department comes18 in and runs through any one of a set number of defenses,19 including political question, that's out. And there we20 have -- what's left is a core of basic human rights21 violations that's been internationalized, that's22 consistent with international law as applied in a lot of23 places and avoids the political problem. That's what I'm24 looking to shape, and I want your view on that because we25 have a brief that tries to do it.





1 MR. PHILLIPS: But that brief assumes that 1350

2 does more than provide jurisdiction.

3 QUESTION: Yes, that's correct.

4 MR. PHILLIPS: It assumes that there is a cause

5 of action.

6 QUESTION: That's correct. That's why -- that's

7 why if I don't accept your first argument, can we achieve

8 your practical objectives by following that approach?

9 MR. PHILLIPS: Well, to be sure. There -- I

10 mean, that would take you back to, I think, Justice

11 O'Connor's question which is, could you resolve this

12 particular case by reference to an understanding of the

13 law of nations that -- that rejects any notion that this

14 was an arbitrary act or that the detention here was

15 prolonged within the meaning of the Restatement (Third) of

16 Foreign Relations? And -- and to be sure, that's a

17 narrower basis for deciding and that is the focus of the

18 commission's brief.

19 QUESTION: It may also -

20 MR. PHILLIPS: We don't have any quarrel with

21 that on -

22 QUESTION: It may also be correct.

23 MR. PHILLIPS: Well, to be sure, it's correct.

24 QUESTION: I mean, you're not -- you're not

25 saying that's a wrong interpretation, are you?





1 MR. PHILLIPS: No, no. Absolutely not. And if2 you're in that world and you're looking at those -- at3 those circumstances, you obviously would have to take a4 very narrow approach in -- in terms of trying to -5 QUESTION: And presumably if there is some cause6 of action alleged in any of these actions that have been7 or might be filed, that deal with something that is8 covered basically by a treaty that Congress has said is9 non-self-executing, I assume that would displace any10 common law background.11 MR. PHILLIPS: Well, I think that you raise an12 important point there which is the parallelism between the13 treaty prong and the law of nations prong of the statute14 because if, as -- as Judge Bork explained in his separate15 opinion, the thing that disturbed him the most about this16 was the suggestion that somehow on behalf of aliens, you17 would create a right under the treaty that you would -18 that -- that citizens would never have had the right to19 because it wouldn't be self-executing. It seemed quite20 improbable that Congress would have intended that. So by21 parity of reasoning, why would Congress have wanted to22 create this kind of access into a brooding omnipresence of23 law that is essentially very difficult to confine? 24 And I -- and I go back to Justice Breyer's point25 which is, to be sure, there are ways to try to narrow





1 those rules. My position is you do better not to try to2 go down that path in the first place. You would do better3 to recognize that this is a purely jurisdictional statute4 and thereby force Congress to look in the future at5 statutes like the Torture Victim Protection Act.6 QUESTION: Okay. Mr. Phillips, let's -- let's7 assume I accept your argument that there are good reasons8 not to invite the -- the -- today's brooding omnipresence9 into court without something more from Congress, that10 there are good reasons to be concerned about separation of11 powers problems. Assume also that I am convinced or the12 Court is convinced that at the time the statute was13 passed, there was an understanding that there were certain14 offenses to which the jurisdictional provision would -15 would provide access for litigation, piracy offenses and16 things like that. How do I distinguish today's situation17 from yesterday's situation and hold your way without being18 inconsistent with what I take it the understanding was at19 the time in incorporating some offenses in a common law20 kind of way?21 MR. PHILLIPS: Well, I think the easiest way to22 ensure consistency there would be to insist that there be23 a -- a real clarity, both that the United States is -24 QUESTION: No, but that -- that then just takes25 you to Justice Breyer. He says -





1 MR. PHILLIPS: Well, no. Then that's my answer2 to your question.3 QUESTION: Okay. 4 MR. PHILLIPS: Because I think in that world -5 QUESTION: You're saying the only way to get6 where I have suggested we might go is Justice Breyer's7 way?8 MR. PHILLIPS: No. I -- I don't know that it's9 the only way, but it is the simplest way to get to that10 kind of consistency if you accept the premise that11 Congress necessarily believed in 1789 that there would be12 a cause of action created from language discussing merely13 jurisdiction. 14 QUESTION: Let me -- well, I'm not -- no. I'm15 not suggesting that it -- that the cause of action was16 created from the language discussing jurisdiction. I am17 assuming that the cause of action was assumed to be out18 there and that the jurisdictional provision opened the19 door to the courthouse to get the cause of action in.20 MR. PHILLIPS: Can -- can I challenge that21 assumption -22 QUESTION: Yes, yes.23 MR. PHILLIPS: -- Justice Souter? Because if24 you look at the historical record and go back to the 178125 Continental Congress saying to the States, there is no





1 brooding omnipresence, we need you, States, to go out,2 take action to deal with ambassadors to protect them -3 QUESTION: Is it clear that there was nothing in4 the absence of -- of action by the States? Or is it clear5 that there were only a -- let's say, a few and rather6 limited causes of action, those largely arising -- well,7 we have the ambassador case. We -- we have offenses at8 sea.9 MR. PHILLIPS: But -- but -- the -- the -- I -10 I think there are no causes of action because the -- if11 you take seriously -- why -- why would the Continental12 Congress say to the States, enact a statute to protect13 ambassadors if ambassadors are otherwise being protected? 14 Why does Connecticut then go forward and enact a law that15 not only provides criminal protection for the ambassadors16 but goes -- goes beyond that and provides civil remedies,17 liability and damages for attacks on ambassadors, if there18 is this brooding omnipresence? 19 The point is -- my -- my basic point is I don't20 think the historical record will demonstrate to you at all21 that these causes of action existed. And therefore, this22 is not a simple instance of the courts -- of the Congress23 trying to tap in to a body of law. What it was doing was24 creating a jurisdictional basis to be filled in in the25 future. In that sense, I don't think the Congress of 1789





1 came to the table to deal with this issue dramatically2 differently than the Congress today would -- would deal3 with it. They enact jurisdictional provisions all the4 time. To be sure, 1331 has eliminated the need for a lot5 of this. 6 But the reality is you -- you create the7 jurisdiction and then you fill the vessel. And this Court8 has got a -- you know, an obviously long line of -- of9 opinions in which it's recognized jurisdiction doesn't10 create Federal common law rules, jurisdiction doesn't11 create a right of action. It simply creates jurisdiction. 12 And if this Court goes back to that core principle as the13 method for trying to interpret section 1350, it will avoid14 all of the problems and then force Congress to take the15 action that I think is important here. 16 The -- the Torture Victim Protection Act has a17 statute of limitations, has an exhaustion requirement, has18 a definition of torture. Congress wasn't implementing19 section 1350 there. It was implementing its obligations20 under international agreements dealing with the question21 of torture. 22 My guess is we have similar kinds of provisions23 that are out there that we probably ought to be trying to24 find causes of action for, and Congress should take those25 up. But what shouldn't happen is to allow the courts





1 exercising what I submit is an extraordinary Federal2 common law power to go out, find causes of action, and3 then proceed to define all of their elements, all of their4 defenses without the benefit of any guidance, which is5 precisely how you end up in a situation today where the6 Ninth Circuit has said that in a situation where a Mexican7 national assists the United States to -- to enforce an8 arrest warrant, and the circumstances presented in this9 case that he's not only engaged in an arbitrary act, but10 that the detention is -- is wrongful in its own right, not11 -- even though there's not a shred of evidence that the12 United States would have embraced that view with respect13 to its own obligations as a matter of international law. 14 Once you open this door -15 QUESTION: Well, we can deal with that issue.16 MR. PHILLIPS: And you should deal with that17 issue, but -- but, Justice O'Connor, I think you should18 try to deal with the broader issue because there are just19 too many of these cases out there creating too much havoc20 for no good reason, if I'm right, that the Congress in21 1789 did not have in mind something anywhere -- anything22 like what we've seen since 1982. And if it's just as easy23 for this Court then to go back to first principles of24 statutory interpretation based on the language of the25 statute and say enough is enough.





1 If there are no -2 QUESTION: They did use the word tort, which is3 -- was -- was surprising to me that they used it at that4 early date. That's -- that's one of my problems I have5 with your position.6 MR. PHILLIPS: They did use the word tort. It's7 unfortunately, obviously having spent, as I said, a long8 time in my historical dig, I haven't been able to figure9 out why they pulled out the word tort under those10 circumstances. It doesn't really have an analog. It11 would have been more sensible if they had -- had used -- I12 mean, they didn't actually need the term limit. I -- I'm13 sure it's a term of limitation. I think what they were14 concerned about were -- were debts. I think that's what15 they were worried about. They didn't want aliens to be16 coming in and trying to -- trying to deal with debts. 17 They were -- they were trying to stay away from that. 18 They were worried, obviously, at the end of the day with19 injuries.20 But -- but I agree with you, Justice Kennedy,21 it's an odd choice of words, given how little law was22 developed on torts generally and how no law was developed23 under the law of nations involving torts specifically. 24 I've already taken up enough of your time.25 QUESTION: Thank you, Mr. Phillips.





1 Mr. Hoffman, we'll hear from you. 2 ORAL ARGUMENT OF PAUL L. HOFFMAN3 ON BEHALF OF THE RESPONDENTS4 MR. HOFFMAN: Mr. Chief Justice, and may it5 please the Court:6 Let me start with the meaning of the alien tort7 statute. It's our position, as you know from the briefs,8 that -- that Congress meant what it said, that Congress9 actually decided in 1789 to pass a statute that allowed10 aliens that had tort claims that -- involving the11 violation of the law of nations to bring them in Federal12 court, and that by using the word tort, what the -- the13 Founding Fathers were referring to was a body of common14 law that was well known to be part of the law in the15 United States during the colonial days and at that time.16 QUESTION: May I ask -17 QUESTION: How do you -- go ahead. 18 MR. HOFFMAN: I'm sorry. I said the -19 QUESTION: May I ask -- may I ask this question20 as a matter of history because your right on the point21 now? Is there anything in the early history that gives22 even the slightest suggestion that Congress wanted to23 legislate with respect to anything that did not happen in24 the United States or on the high seas?25 MR. HOFFMAN: Well, I think that the -- the





1 kinds of law of -- law of nations violations at the time2 would have included piracy, which clearly -- in terms of3 another country, I mean, it's certainly possible that a -4 an assault on an ambassador could have taken place in5 another country.6 QUESTION: Yes, but the only ones they knew7 about had taken place in the United States. 8 MR. HOFFMAN: Well, the ones that they were most9 concerned about was the 1784 Marbois incident and the one10 in 1788, the Dutch ambassador in New York City, were the11 ones most on their mind.12 QUESTION: They certainly would not have been13 concerned about an assault on the -- say, the English14 ambassador in Paris by a Frenchman.15 MR. HOFFMAN: Well, that's not entirely clear, I16 mean, because if there was a -- one of the things that was17 before them was the transitory tort doctrine. And the18 transitory tort doctrine, which this Court has recognized19 dates back at least as -- as far as Mostyn v. Fabrigas,20 which is a 1774 Lord Mansfield opinion, which involves21 ironically a false imprisonment claim against a government22 official which took place outside the territory of England23 and which was found to be cognizable in common law tort24 within the -- the courts of England. And so the -25 QUESTION: Well, you wouldn't need the -- the





1 law of nations for a transitory tort. I mean, if it's

2 a --

3 MR. HOFFMAN: Excuse me?

4 QUESTION: You -- you don't need the law of

5 nations to sue on a transitory tort.

6 MR. HOFFMAN: No, of course, not.

7 QUESTION: If it was a tort in the country where

8 it was committed, you -- you could sue on it elsewhere.

9 MR. HOFFMAN: No. And in fact, I think that one

10 of the main purposes of the alien tort statute was to

11 provide a Federal forum for those claims when they came

12 within the United States.

13 QUESTION: If -- if there was this background of

14 -- of understood common law that you say, how do you

15 explain the 1781 action of the Continental Congress which

16 is concerned about the fact that -- that there's no

17 redress for -- for assault on ambassadors, among other

18 things?

19 MR. HOFFMAN: Well -

20 QUESTION: And they asked the States, do

21 something about it.

22 MR. HOFFMAN: Well, certainly the -

23 QUESTION: If that -- that was part of the

24 understood common law, what is the problem?

25 MR. HOFFMAN: Well, one of the -- one of the -





1 first of all, Longchamps is one response to that in the2 sense that in Pennsylvania they didn't need a statute. 3 They didn't pass a statute and -- and the -- the courts in4 Pennsylvania understood that the law of nations was part5 of their common law.6 QUESTION: Yes, but that goes against the notion7 that there was an understood common understanding that was8 the background. It was understood one way in9 Pennsylvania. It was understood another way by -- by the10 Continental Congress.11 MR. HOFFMAN: No. I think what -- what -- the12 way we would interpret the 1781 resolution is that the13 1781 resolution was more a function of the Continental14 Congress' inability to enforce the law of nations on15 behalf of the Nation under the Articles of Confederation. 16 And so they had no way to respond to any incident,17 including the Marbois incident after that resolution. 18 Now, they did -19 QUESTION: Then why did they pass a resolution20 saying to the States, enforce the common law?21 MR. HOFFMAN: Well, what they did is they asked22 the -- the States to enforce the law of nations. And23 Connecticut passed that particular statute in order to do24 it. Other States did not act in response to that, but25 that's not to suggest that they didn't decide that they





1 already had adequate remedies.2 Moreover, the resolution did more than just ask3 the States to enforce the law of nations. It also4 provided a new -- which was not a common law thing -- an5 indemnity for the United States if the United States had6 to do something to take up the slack for the States. 7 And so from our standpoint, what -- what the -8 the 1781 resolution really does is that is the -- the step9 is from 1781, feeling completely frustrated and not able10 to enforce the law of nations, coming to the Constitution11 where there's lots of evidence that the Founding Fathers12 believed that we had to as a Nation enforce the law of13 nations, having incidents like the Marbois incident and14 the -- the attack on the ambassador in New York right15 before them, deciding in the alien tort statute to make16 those claims available. 17 Now, what -- what the Government and -- and18 Petitioner Sosa want the Court to believe is that having19 gone through the trouble of expressing to the world, to20 the people, in terms of the -- that -- that we would as a21 Nation enforce the law of nations, that then the Congress22 just didn't do it because basically Congress didn't do23 anything else to enforce the torts in violation of the law24 of nations clause of the Judiciary Act of 1789.25 QUESTION: Part -- part of the problem I have





1 with -- with your -- your proposal is that it leaves it up2 -- it leaves it up to the courts to decide what the law of3 nations is. And -- and the Ninth Circuit here derived a4 law of nations principle from, among other things,5 treaties that we had refused to sign, international6 agreements that we had reserved against. I -- I find that7 a -- a serious interference with the ability of -- of the8 political branches to conduct our foreign affairs.9 MR. HOFFMAN: Well, there are two -- I have two10 responses, Justice Scalia, to that question. 11 On the first one, in terms of whether the law of12 nations is too indeterminate -- boundless I think is the13 word that's used in the petitioner's brief -- this Court14 has affirmed at least in -- on two occasions that I'm15 aware of, in U.S. v. Smith and in Ex parte Quirin, the16 fact that Congress can easily by reference incorporate the17 law of nations and that it is not indeterminate enough to18 justify a death sentence in the -- against the pirate in19 the United States v. Smith in 1820 and 120-some-odd years20 later against Nazi saboteurs in Ex parte Quirin. The21 Court -- it is perfectly permissible for the Congress,22 particularly in 1789, to incorporate by reference what23 lawyers at that time knew to be the law of nations. It's24 not -- Congress doesn't have to exercise its -25 QUESTION: Those -- those are pretty polar





1 instances, piracy and -- and sabotage in -- in time of2 war. We're talking here about other matters that are not3 -- not at all polar. 4 MR. HOFFMAN: Well, in the -- in the -5 QUESTION: And I -- sure, I can tell you some6 things that everybody would agree is against the law of7 nations, but there are a lot of things in between that the8 European Union may think is bad and we may not think is9 bad.10 MR. HOFFMAN: Well, but actually I think that11 that is -- would not be a correct view of -- either of12 what the courts did or what the courts ought to do. In13 fact, there are a relative handful of cases under the14 alien tort statute in the last 25 years in which there15 have been findings about violations of the law of nations. 16 They have tended overall to involve claims of torture,17 genocide, war crimes, crimes against humanity, clearly18 norms that the United States has supported from Nuremberg19 on down.20 QUESTION: But that's not your case. 21 MR. HOFFMAN: Well, you're right, Chief Justice22 Rehnquist. That is not my case. 23 But my argument about why this is arbitrary24 arrest and detention is, number one, there is a core25 arbitrary arrest and detention norm that an -- that an





1 arrest and detention can't happen without legal authority.2 QUESTION: Well, there was legal authority here. 3 The -- the -- he was indicted by a grand jury.4 MR. HOFFMAN: Well, he was indicted by a grand5 jury and there was an arrest warrant that was limited to6 the territorial boundaries of the United States. 7 QUESTION: Well -8 MR. HOFFMAN: There was no authority to arrest9 him in Mexico. 10 QUESTION: -- yes, but I -- I think there's a11 good argument that section 878 has extraterritorial12 application, that DEA agents are not prevented from13 carrying out their duties across our borders.14 MR. HOFFMAN: Well, I think that the -- the15 distinction -- and -- and -- that needs to be made on that16 is that it is clear that the Congress was aware, as we all17 are aware, that the Drug Enforcement Administration has18 involved in activities in other countries of a variety of19 activities. 20 QUESTION: Well, like in that case of -21 MR. HOFFMAN: They're supportive.22 QUESTION: -- United States v. Bowman dealing23 with a ship and -- and exercise of criminal law24 enforcement outside our borders and we thought there was25 in that case no presumption against extraterritoriality.





1 MR. HOFFMAN: Well, that's -

2 QUESTION: And I think there may well not be in

3 this DEA context as well.

4 MR. HOFFMAN: The -- the -- I hope to persuade

5 you otherwise on that point. But the -- the distinction I

6 would draw, first of all, is that the fact that the DEA is

7 involved in some activities abroad doesn't mean that

8 Congress intended that any DEA officer or employee had

9 worldwide arrest authority at their discretion.

10 QUESTION: No, but we certainly -- in Bowman we

11 said that the Coast Guard could enforce revenue laws -

12 MR. HOFFMAN: Sure.

13 QUESTION: -- outside our borders, and very

14 likely a DEA agent can enforce our laws beyond our

15 borders.

16 MR. HOFFMAN: Bowman -- Bowman was about

17 jurisdiction to proscribe. And I think the -- the

18 Government relies on Maul as the case for -- on the

19 jurisdiction to enforce. And -- and the Maul case is very

20 interesting actually because what it does is it says that

21 the Coast Guard can be engaged in activities on the high

22 seas which are extraterritorial, but they're not within

23 the territory of another state.

24 And in fact, the -- the language in Maul is very

25 clear to talk about the law of nations and the





1 restrictions on the ability of the Coast Guard to do2 things. They say they're not at issue in that case3 because the high seas is a place where that kind of4 authority can be maintained without any conflict with any5 other nation or without any conflict with -- with the law6 of nations. What they -- they were also dealing with a7 U.S. ship and a -- and a U.S. citizen, and so there was no8 even issue about whether they had the authority on the9 high seas to seize a foreign-flagged ship.10 QUESTION: How can you read the statute to11 include the one and not include the other? I mean, it -12 it doesn't -- it doesn't slice the bologna that thin. It13 just says they have authority to enforce the laws. Now,14 if -- if you say that they can't arrest in Mexico, I15 assume they can't investigate in Mexico. I don't see how16 you can read the -17 MR. HOFFMAN: I don't think that it -- I don't18 think that -19 QUESTION: How can you read the statute to20 permit the one but not permit the other?21 MR. HOFFMAN: Well, I don't think that it22 follows that -- that you have to assume that Congress23 intended that -- that entire statute had to have complete24 extraterritorial effect. 25 Now, but there's an additional principle other





1 than the presumption against extraterritoriality, which2 would slice it one way or the other perhaps, although I3 think what the Ninth Circuit said is that we're talking4 about extraterritorial arrest here and that provision and5 whether that's extraterritorial both in terms of the6 language of the statute and the background of the statute,7 the background of -- of cooperative activities, not8 activities in violation of the law of nations, but -9 QUESTION: Tell me what language could possibly10 allow you to draw that -- that distinction in the text of11 the statute. There's no language that allows you to do12 that -13 MR. HOFFMAN: Well, the -14 QUESTION: -- between arrest and investigation.15 MR. HOFFMAN: I think that the difference would16 be that the Congress -- one of the arguments that the17 Government is making, because they don't -- there's18 nothing in the -- in the statute that tells you that19 arrest authority is extraterritorial either. It doesn't20 say anything. It's boiler plate authorization language.21 Right?22 QUESTION: Right. 23 MR. HOFFMAN: And -- and under the Government's24 theory, in fact in their reply brief, they say that the25 citizens arrest statute in California is the same to





1 section 878, which means that 36 million people in -- in

2 the State of California can engage in extraterritorial

3 arrests too.

4 QUESTION: I didn't like that --

5 MR. HOFFMAN: And so there has -- there have to

6 be some other limitations and some other inquiries -

7 QUESTION: Okay. And you said -- you said you

8 had another limitation and a further principle.

9 MR. HOFFMAN: Yes.

10 QUESTION: What's the second principle?

11 MR. HOFFMAN: Let me -- the -- the other

12 limitation -- the other -- well, there are two really.

13 One is the Mansfield Amendment, which we have laid out in

14 our brief. And basically our position is that what the

15 Mansfield Amendment means is that the DEA was

16 specifically -

17 QUESTION: Well, look, there -- that amendment

18 refers to foreign police action. There wasn't any such

19 here.

20 MR. HOFFMAN: But in the -- on the Government's

21 theory -

22 QUESTION: None. I don't see how it falls

23 within that at all.

24 MR. HOFFMAN: But in the Government's theory,

25 what that would mean is that if -- if the Government





1 wanted to arrest a drug trafficker in Mexico and they -

2 they would be barred by the Mansfield Amendment from

3 actually being involved in that arrest, even participating

4 in it unless the ambassador to Mexico approved it under

5 the -- the rules, but under their theory, they could

6 actually hire the people that they hired in this case to

7 arrest the trafficker. Now, I don't -- that's -- but

8 that's what they're saying. And I -- I -

9 QUESTION: What does the term direct mean?

10 MR. HOFFMAN: Well, I -- direct -- what -- what

11 happened in this case was certainly directly effecting the

12 arrest. What the -- what the DEA officials in this case

13 did is they directed that he be arrested.

14 QUESTION: Well, in that sense every arrest is a

15 direct arrest. There's no such thing as an indirect

16 arrest I suppose on that theory.

17 MR. HOFFMAN: Well, I -- I think what the -

18 what the difference -

19 QUESTION: Doesn't direct refer to the -- to the

20 actions of the agents?

21 MR. HOFFMAN: But I think what the difference

22 was is the Mansfield Amendment was broader than just

23 arresting. The Mansfield Amendment came out of a trip

24 that Senator Mansfield took to Thailand where he was

25 concerned about the -- the fact that DEA agents were -





1 were even in any operations with foreign law enforcement2 and they -- he thought that that caused problems to our3 foreign relations and -- and the exercise of law4 enforcement authority in other countries. 5 Now, that was -6 QUESTION: If that was so, why didn't he just7 eliminate from this as part of any foreign police action? 8 Why is that phase in there?9 QUESTION: Yes.10 MR. HOFFMAN: Well, but the thing is from our11 standpoint, I mean, this is a foreign -- this -- this is a12 police action in a foreign country.13 QUESTION: Oh, no, no, no, no.14 QUESTION: But that's not -15 QUESTION: You -- you don't think foreign police16 means foreign police? 17 (Laughter.) 18 MR. HOFFMAN: I --19 QUESTION: You -- you think it's foreign police20 action. 21 MR. HOFFMAN: I really think that -- that the -22 the intent of the Mansfield Amendment was not to allow DEA23 agents to get involved in arrests that caused problems for24 our foreign relations. And that's exactly what this25 arrest did.





1 QUESTION: Okay. You had -

2 QUESTION: Oh, I think you have to look very

3 closely at that language and -- and I think it may well

4 not fit this case.

5 MR. HOFFMAN: Well, the other -- the other

6 principle, though, which I think is the one that -- that I

7 think clearly applies to this case is -- is the principle

8 that statutes need to be interpreted to be consistent with

9 our international law obligations, the Charming Betsy

10 principle. And -- and there, even in the Maul case, the

11 -- the Maul Court was certainly aware of the fact that

12 there were limits in the international law about the

13 ability to enforce our law extraterritorially.

14 QUESTION: You -- you had -- you told me you

15 were going to give me two more principles.

16 MR. HOFFMAN: That was the -

17 QUESTION: One was Mansfield. What -- what's

18 next?

19 MR. HOFFMAN: This was it. The Charming Betsy

20 is number two.

21 QUESTION: Okay.

22 MR. HOFFMAN: Sorry.

23 But -- but that's the other principle, and I -

24 I think the one that -- that probably is most applicable

25 to the situation is the principle that you should presume





1 that Congress did not intend to authorize violations of2 international law, which is what occurred in this case. 3 And whether that's --4 QUESTION: They did it. I mean, that's -5 that's the -- the two things that maybe you're going to6 address now that are bothering me the most and they're7 related is what the DEA says is that this was a person who8 people in Mexico tortured to death. This was not that9 they went in there for narcotics reasons. They wanted to10 get the people who had tortured an American to death. 11 And how do we decide such a thing? Should each12 of the courts of the United States decide that13 independently? 14 It's related to the problem of Mr. Mbeki. 15 Apartheid is a terrible thing, but according to the16 government, Mr. Mbeki, I take it -- that's the highest17 authority, the President of South Africa, has told the18 United States that the judicial efforts to give19 compensation to victims are interfering with his efforts20 to build a democratic South Africa. Now, I have to21 choose between those two? I'd say democratic South22 Africa, protective of human rights has it all over23 compensating the victims even though that's terrible. 24 And what I'm asking you is what kinds of25 principles do you suggest that will allow Mr. Mbeki to





1 decide what's right there and not 40 independent Federal

2 judges somewhere. And how will we decide such things as

3 to whether this is the kind of effort to get a torturer or

4 whether it is a violation of -- of law? What are the

5 principles of limitation in these areas?

6 MR. HOFFMAN: Well, I think that the -- the

7 first -- in terms of the Alien Tort Claims Act, which I

8 think is where the South Africa example is coming from

9 mostly, I think that the -- there -- there are several

10 limitations that are inherent in the jurisprudence. One

11 is that it's very difficult to find a customary

12 international law norm, and it's not -- it wasn't even

13 easy in this case.

14 In fact, if there was -- if the President

15 authorized this kidnapping, there's no claim. I should

16 get that out of the way. There's no claim under -- under

17 the Alien Tort Claims Act. There's no claim under the

18 Federal Tort Claims Act. If the President and probably if

19 the Attorney General said it is in the -- America's

20 interest to kidnap this person and bring him to justice, I

21 don't have a claim. But the reason I have a claim -

22 QUESTION: How can -

23 MR. HOFFMAN: -- is that the President didn't do

24 that.

25 QUESTION: How is that consistent with an





1 acknowledgement that there is an automatically self

2 executing brooding omnipresence of customary international

3 law?

4 MR. HOFFMAN: Well --

5 QUESTION: That's just inconsistent with such a

6 notion.

7 MR. HOFFMAN: Well,no. It -- it's actually not.

8 I mean, what the -- what The Nereide said or what this

9 Court said in The Nereide is until there's an act, the

10 courts will enforce the law of nations.

11 In The Paquete Habana, what the Court said was

12 we will enforce the law of nations, even against the

13 military, for violations for the law -- laws of war unless

14 the President -- unless there's a controlling executive,

15 legislative, or judicial act. And so if the President

16 takes a controlling executive act, that's it. It might

17 still be a violation of international law, but -- but

18 under this Court's -

19 QUESTION: What about the commander-in-chief of

20 the armed forces? Would that -- would that suffice?

21 MR. HOFFMAN: I don't know the answer to that,

22 although -

23 QUESTION: Or the Secretary of State. I want to

24 know how far down you go.

25 MR. HOFFMAN: I -- I think that that it probably





1 is the case that it goes down to the President and his

2 cabinet. In The Paquete Habana, this Court decided that

3 the decision of an admiral who was charged with the

4 enforcement of the blockade of Cuba during the Spanish

5 American War acted in violation of customary international

6 law by seizing two fishing boats. Those fishing boats

7 were returned. Well, they were actually sold. There were

8 damages issued based on customary law by -- by this Court

9 for the violation of the law of nations.

10 And -- and in -- in that case, you had a

11 situation where the dissenters and the Government said

12 this is a political question. You -- you shouldn't be

13 able to decide this. The Court said, no, we can decide

14 the law of nations. We can find the law of nations. We

15 can even find that the law of nations has evolved so that

16 the way that fishing vessels were treated during the

17 Napoleonic Wars might have been a matter of comity, but by

18 the Spanish-American War, they had ripened into customary

19 law, which we can find through the methods that have been

20 employed by the courts of this country since the very

21 beginning of the republic and before the republic was

22 created.

23 QUESTION: Mr. Hoffman, a moment ago you cited

24 the Charming Betsy for a principle that we defer to

25 international law. Where is that? I don't see any





1 QUESTION: Under your theory, you'd say -2 MR. HOFFMAN: No. 3 QUESTION: -- this -- this statute simply does4 not authorize foreign arrests.5 MR. HOFFMAN: That -- that may be the -- on the6 presumption of extraterritoriality and the way that -7 QUESTION: Right. 8 MR. HOFFMAN: -- that the Ninth Circuit read it. 9 Under the Charming Betsy principle, what our principle is10 is the one -- we adopt what the -- what the United States11 adopts as the principle of international law, which was12 laid out in Judge Sofaer's opinion in March 1980 through13 the Office of Legal Counsel which basically said on a14 review of all the international authorities, they found15 that it was a violation of international law to forcibly16 abduct somebody from another country if that country17 protested.18 The protest actually eliminates the problems19 that the Government is talking about in terms of finding20 consent and whether there's another government that's21 recognized, all those things, because what Judge Sofaer22 said in the opinion was that acquiescence equals consent.23 The -- if a foreign government wants to assert24 that limit on -- on U.S. law enforcement authority under25 international law, it had better make a protest, as Mexico





1 did in this case. And one of the reasons this is such an2 unusual case is that you just don't find many situations3 where there has been any kind of extraterritorial law4 enforcement where there has been a sovereign protest.5 QUESTION: Okay, but there -- there -- I think6 that the conduct that was the basis for the indictment7 here, the kidnap and torture and murder of a U.S. DEA8 agent in Mexico, can be punished in the United States in9 accordance with international law under the effects10 doctrine because we can criminalize conduct occurring in11 another country that has an effect on our country's12 security or core national interests, which clearly this13 did.14 MR. HOFFMAN: I completely agree with that. 15 There's no question. There has never been in the case16 that -- that the statute under which Dr. Alvarez was tried17 was extraterritorial. There's no question in -- in my18 mind, I don't think anybody's mind, that the United States19 in making that statute extraterritorial was acting20 consistent with its international obligations.21 QUESTION: Right. 22 MR. HOFFMAN: But there is a difference between23 the jurisdiction to proscribe within international law and24 -- and the jurisdiction to enforce those laws.25 What the -- what the Government says is that if





1 you don't give us this authority, unlimited, anybody -- it2 might even be the Forest Service that could do it because3 they might have the same statute -- that -- that it's4 either that or war.5 QUESTION: Suppose he'd been guilty, convicted,6 30 years. Okay? Now, does he get damages from the United7 States on your theory for every day he spent in prison?8 MR. HOFFMAN: Well, for one thing, the -- the9 court -- the court below cut off damages.10 QUESTION: I'm not talking about this case. I'm11 talking about an identical case -- an identical case. 12 He's convicted, sent to prison for 20 years. Does he get13 damages for each of those days?14 MR. HOFFMAN: Certainly not under the rule15 below, and I think -16 QUESTION: What's the right rule in your -17 MR. HOFFMAN: What's the right rule? You know,18 theoretically I suppose that if you are imprisoning19 somebody in violation of international law, you should20 have a remedy that responds to that and that's -21 QUESTION: Okay. That's one of the problems. I22 want -- but I -- I've tried to focus the main problem by23 calling to mind Mr. Mbeki, and the reason is because it's24 such a good example. I would have thought apartheid does25 violate norms of international law certainly where





1 violence attaches. I would have thought there are lots of

2 private people who aid and abet. I would have thought it

3 would be easy to find a victim and bring a lawsuit, and I

4 would have also thought it's not totally beyond question

5 that the president of a country could think they're

6 counterproductive -- those lawsuits -- in terms of the

7 democracy we're trying to build. So I've tried to create

8 some tension there, and I want to know you, who want a

9 rule -

10 MR. HOFFMAN: Right.

11 QUESTION: -- that allows these suits in the

12 court -- how does it become limited in this circumstance,

13 an analogous circumstance?

14 MR. HOFFMAN: I apologize for not completing my

15 answer. But I started with the idea that there were a

16 limited number of norms, but there's more to that.

17 There's, of course, the act of state doctrine. And so -

18 QUESTION: That's why I chose in my example

19 aiding and abetting by a private citizen of the very bad

20 thing of apartheid leaving -- leading to deaths and -- and

21 violence, et cetera, as happened. And -- and if I can't

22 -- now, the European Commission has a method here in their

23 brief. So I'm interested is that a proper method.

24 MR. HOFFMAN: Well, I think it -

25 QUESTION: You want to propose some other





1 method, but to propose no method --

2 MR. HOFFMAN: Well -

3 QUESTION: -- it seems to me, is to concede -

4 MR. HOFFMAN: What --

5 QUESTION: -- the validity of the Government's

6 point about lawsuits here.

7 MR. HOFFMAN: Well, I think that the -- first of

8 all, particularly in the corporate realm, there has not

9 been a judgment yet against a corporation in an alien tort

10 statute case. There just hasn't. And many of them have

11 been dismissed. Some have been dismissed on the political

12 question doctrine. We've mentioned some in our brief.

13 Where there is a conflict between this country's foreign

14 policy and the progress of the lawsuit, at least in some

15 circumstances, the case can be dismissed on political

16 question grounds. On some other cases, it -- it will be

17 dismissed on act of state grounds.

18 The -- the one pertinent limitation -- and -

19 and it's actually been raised by the other side -- is

20 exhaustion of local remedies. And -- and what -- what -

21 the answer you got on exhaustion of local remedies was

22 some theorists think that that's part of international

23 law. It is part of international law. In fact, in a lot

24 of the early alien tort statute cases, defendants did

25 raise exhaustion of local remedies.





1 One of the reasons that it hasn't been a big2 issue is that a lot of the people that are coming to this3 country to vindicate their human rights are refugees that4 have fled from places like Burma or revolutionary Ethiopia5 or other places that have no legal system and could not6 possibly give a local remedy.7 Now, that won't be the case for -- for cases8 that arise in other contexts where there is. And I think9 the courts can dismiss based on exhaustion of local10 remedies where there are remedies to be done, and that is11 not something that -- the -- the court would apply that as12 part of -- of international law, as part of the law of13 nations because it is part of the law of nations. 14 And so the TVPA actually took the lead from the15 alien tort statute in having an exhaustion of local16 remedies issue, and I think that a lot of the -- the17 issues about separation of powers and -- and the -- the18 parade horribles about what might happen because of these19 cases, this is -20 QUESTION: But wouldn't that doctrine require21 you to lose this lawsuit?22 MR. HOFFMAN: Excuse me?23 QUESTION: Wouldn't the doctrine of exhaustion24 of remedies require you to lose this lawsuit?25 MR. HOFFMAN: Well, no, actually because I don't





1 -- we -- we can't get a remedy in Mexico against -

2 QUESTION: Why not?

3 MR. HOFFMAN: We certainly can't get a remedy in

4 Mexico against Mr. Sosa. Mr. Sosa is here, and the United

5 States is here. And what remedy would he get in a Mexican

6 court if he can't -- this is a transitory tort. I mean,

7 this is the kind of transitory tort that would have been

8 well understood by Lord Mansfield, false imprisonment.

9 That was -

10 QUESTION: What tort issue -- what --

11 QUESTION: That's fine. Why -- why couldn't you

12 sue him in Mexico, service by mail?

13 MR. HOFFMAN: We could sue him here in the State

14 court. He has a State cause of action. And in fact, one

15 of the -

16 QUESTION: Why -- why can't you sue in Mexico?

17 We're talking about exhaustion of local remedies? Why

18 couldn't you have sued him in Mexico?

19 MR. HOFFMAN: Where do we get -- where do we get

20 jurisdiction over him?

21 QUESTION: He committed the tort in Mexico.

22 MR. HOFFMAN: We don't have personal

23 jurisdiction over -

24 QUESTION: You -- you don't need it. You -- you

25 serve by mail.





1 QUESTION: That's notice. You certainly do have

2 personal jurisdiction over him where he acted.

3 MR. HOFFMAN: Well, the only thing I can say is

4 that for -- we have now been litigating the case, as you

5 know, since -- for 12 years, and the exhaustion of -- of

6 local remedies has not come up as a defense. And I think

7 it would be a defense that the defendant would have to -

8 QUESTION: That's because a lot of people don't

9 think it's part of international law probably.

10 MR. HOFFMAN: But --

11 (Laughter.)

12 MR. HOFFMAN: I -- I think -- I think it is and

13 it has been raised.

14 QUESTION: What about restricting these lawsuits

15 to instances of violation of basic norms of international

16 law where the international law itself foresees universal

17 jurisdiction in, of course, the absence of some indication

18 from Congress that they don't want such lawsuits?

19 MR. HOFFMAN: I think -

20 QUESTION: What about that -- that will not help

21 your case I don't think in this instance, but I'm looking

22 in your opinion as an -

23 MR. HOFFMAN: I guess the question -- the

24 question is from our standpoint the -- the Founders wanted

25 to enforce the law of nations. What's changed is that the





1 law of nations has changed. Since Nuremberg, there's an2 international law of human rights. Some -- some rights3 within that have ripened into customary law. And so the4 reason you have more cases is that you have a different5 world than you had in 1789. That's really what has6 changed.7 QUESTION: It's the human rights enforcement8 push, is it not?9 MR. HOFFMAN: Well, I think it -- I think it is. 10 And in fact, a Justice of this Court started it. I mean,11 it's the Nuremberg principle that individuals can be12 responsible for the violation of international human13 rights. And what the -- what the alien tort statute has14 done is provide a forum for people who have suffered15 terrible human rights violations in general in these cases16 to come here and have their rights adjudicated when they17 find the defendant here. 18 So when one of my clients met her torturer at a19 hotel in Atlanta, Georgia, she was able to go to a court20 and -- and get a remedy for her torture because her21 torturer was here and she was here. And that's the -22 that's a paradigm of what -- what this law has been -23 QUESTION: What about -- what about the24 principle that you have some such violations which will25 work well if judges in every nation try to enforce them





1 and others where the judges will fall over themselves with2 contradictory decisions creating a mess? And one good way3 to separate the former from the latter is to look to see4 if universal jurisdiction is part of or at least foreseen5 by or at least consistent with the international law norm. 6 I'm looking for ways that are going to avoid the problems.7 MR. HOFFMAN: I would have two -- two responses8 really. One is that the universal jurisdiction principle9 is primarily a principle of the assertion of criminal10 jurisdiction for certain international crimes. And so I11 don't think that it fits very well -12 QUESTION: But in many countries, criminal13 jurisdiction is --14 MR. HOFFMAN: That's true.15 QUESTION: -- accompanied by civil16 jurisdiction --17 MR. HOFFMAN: No, that's true.18 QUESTION: -- because they're right in the19 criminal courtroom. 20 MR. HOFFMAN: That's true, and there are21 differences in domestic statutes around the world in terms22 of -- of enforcement of these kinds of human rights. I23 mean, they're incorporated in various ways. There are24 universal jurisdictions that -- statutes that apply to25 some but not all of these claims.





1 I think that the -- the -- our -- our objection2 to that would be that it would be trying to -- to find a3 limit that's really not in the statute and really is a -4 a function, we think, for Congress to decide. Congress -5 there was a question before, has anybody -- has there ever6 been an -- an attempt to change the alien tort statute? 7 As far as we know, there has never been a bill in Congress8 to ask for any change.9 In fact, the administration in the Filartiga10 case and in Kadic later basically said -- in Filartiga,11 they said it would be a problem for our foreign relations12 if we refused to recognize a remedy in this kind of case. 13 And in the Torture Victim Protection Act, it is14 very clear in the Senate and House reports, as clear as I15 think Congress could possibly be, that Congress liked the16 development in Filartiga case. Congress rejected the17 arguments that are being made to you by the petitioners in18 this case, explicitly with reference to Judge Bork's19 opinion in Tel-Oren, and saw none of these problems with20 the enforcement of the alien tort statute.21 QUESTION: Well, they did -- they did in the22 Tort Victim Protection Act provide a definite claim,23 something with a -- with a statute of limitations, which24 is not here, something with a definition of what torture25 is, not tort, the world of tort, so that -- that that





1 looks like a model of specificity where 1350 is just the

2 opposite.

3 MR. HOFFMAN: Well, I think -- well, that's

4 because of when 1350 was drafted. But I think that the -

5 I think that those problems are not as insurmountable as

6 they're made out to be. I think the courts have been able

7 to deal with those problems in the way that courts have

8 dealt with them in other areas of the law. I mean,

9 section 1983, for example, doesn't provide a lot of those

10 things either, and courts have been able to fashion the

11 rules that would govern those kinds of cases -

12 QUESTION: But you -- you do -- in 1983, you do

13 have reference to very specific things, to provisions of

14 Federal statutory law or to provisions of the

15 Constitution.

16 MR. HOFFMAN: Well, and you have -- you have in

17 section 1988 a -- a reference to State law, and this Court

18 has often had reference to State law and sometimes it's

19 had reference to rules that are based on -- on different

20 reasons.

21 But the -- the courts -- I mean, for example, in

22 the statute of limitations, the statute of limitations in

23 the Alien Tort Claims Act was -- was shorter before the

24 Torture Victim Protection Act, and since the Torture

25 Victim Protection Act, the courts have applied the statute





1 of limitations that Congress believes is appropriate to

2 those -- to those cases.

3 So I -- I want to -- I know I still don't answer

4 your -- I'm trying to answer your question. And then my

5 -- my -- our feeling about that is that those kinds of

6 policy choices, where there are differences of opinion

7 even between administrations about how this should be -- I

8 mean, that's clear. Some administrations think this is a

9 great way to proclaim to the world our commitment to the

10 law of nations. Our feeling is that is completely

11 consistent with what the Founders thought about the law of

12 nations too. They were proclaiming their commitment to

13 the law of nations and the alien tort statute does that in

14 the international human rights field today. We have said

15 that around the world and -- and it is true.

16 If there need to be modifications to it,

17 Congress can modify it. There's no question about that.

18 And even in -- with respect to particular norms, because

19 this is enforcing the law of nations and because it can be

20 displaced by -- by controlling executive decisions, we're

21 protected. There's no norm that's been enforced that the

22 United States disagrees with. There's a disagreement in

23 this -

24 QUESTION: What about a suit based on some norm

25 covered by a treaty where Congress -- where the Senate has





1 said it's non-self-executing?2 MR. HOFFMAN: Right. Well, I think there are3 two different -- there -- there are two different issues4 there I think. 5 One is if the treaty -- if the United States in6 the treaty has issued a reservation to the norm, then I7 don't -- I don't think it's enforceable. I think there's8 a reservation, we don't accept that norm.9 I think the -- the difference with the non10 self-executing declaration is that that doesn't mean that11 we don't accept the norms. The non-self-executing12 declaration is -- is we might or we might not. I mean, it13 could be evidence and it might be something that would be14 looked at by a court, but the -- what -- what -- because15 Article VI of the Constitution says that treaties are the16 law of the land and shall be enforced, including by the17 courts of the -- of the States, if the United States18 entered into human rights treaties without that19 reservation, then many norms which are not customary norms20 -- in the -- in the International Covenant on Civil and21 Political Rights, there are probably a handful of norms22 that would be accepted as being customary norms and many23 that would go beyond anything that people would argue as24 customary. So the -25 QUESTION: Who -- who decides this? I'm really





1 am sort of in the woods as to -

2 MR. HOFFMAN: The courts. The courts can decide

3 this.

4 QUESTION: I see. What -- what --

5 MR. HOFFMAN: The courts have always decided

6 this kind of thing.

7 QUESTION: 51 percent of the countries of the

8 world accept them? They're -- they're customary norms?

9 MR. HOFFMAN: No. If there's a division of

10 opinion, as this Court said in Sabbattino -- and in fact,

11 in Sabbattino, the United States Government came into the

12 Court and said, you should decide this case because we

13 think the law is -- there's a violation of international

14 law here. And the Court decided, no. There's a diversity

15 of opinion and -- and the act of state doctrine precludes

16 us from issuing an opinion in that.

17 And so where there is a genuine diversity of

18 opinion -- and I would say we have cited several cases

19 like the Flores case which rejects arguments based on

20 environmental torts. There are a number of cases that

21 have brought business kinds of torts that -- that have

22 just been thrown out of court. And -- and I think that

23 the -- the courts have done -

24 QUESTION: May I just recall Sabbattino? I

25 thought the assumption the Court made in Sabbattino was





1 that there was a clear violation of international law, but

2 nevertheless, the act of state doctrine applied. That's

3 my recollection of Justice Harlan's opinion.

4 MR. HOFFMAN: I don't -- that would not be what

5 I would view it as. I think what -- what Justice Harlan

6 said was there -- there was diverse opinion within the

7 world about the violation of law.

8 QUESTION: That's not what prompted Justice

9 White's dissent. He was so upset by the fact that it was

10 a clear violation of law, but we nevertheless would give

11 the defense act of state doctrine to Cuba. But you may be

12 right, but that's my -- it was my recollection of the

13 opinion.

14 MR. HOFFMAN: My point I guess would be, though,

15 that where there is diversity among nations or about the

16 norm, then I don't think they can be forced -- enforced

17 within the alien tort statute.

18 And I think that in the South Africa case, for

19 example, I mean, I wouldn't be surprised if that would be

20 dismissed. It's -- I think there's a motion to dismiss

21 pending, and it may be that -- that that's the kind of

22 case that ought not to be in the courts. I don't know

23 much about the details of it, so it's very hard to make

24 that kind of comment.

25 But you know, I think that there are -- there





1 are doctrines that the Court has, both domestically and2 internationally, to make sure that these problems don't3 become the kind of problems that are there. And if they4 are problems, they can be remedied. They can be remedied5 by Congress. And it seems to us that that's where -6 that's where the decision should be made. 7 I see that my time is up. 8 And the -- the closing remark I -- I would make9 really is that in -- in Ker v. Illinois in 1886, this10 Court denied a remedy to someone who had been kidnapped11 from another country and said that he could be tried12 notwithstanding that violation. The Court also said that13 that person would not be without a remedy, that all that14 person had to do was bring a suit for trespass and false15 arrest, and the Court was sure that that statement would16 provide a remedy in the courts. 17 After Dr. Alvarez's acquittal, he took up the18 Court on that suggestion that he might get a remedy under19 the statutes that Congress has -- where Congress has20 authorized the courts to provide redress for -- for those21 kinds of torts and for those kinds of violations of the22 law of nations. And to -- all that we are asking from23 this Court and all we asked in the courts below is that24 the courts perform the kinds of functions that courts have25 performed for hundreds of years before the republic, all





1 during the republic in providing a damage remedy for the2 violation of personal rights. 3 And upholding the modest judgment in this case4 is not going to undermine our national security. It will5 only affirm the values that have made the -- the country6 as great as it is. 7 Thank you very much. 8 QUESTION: Thank you, Mr. Hoffman. 9 Mr. Clement, you have 4 minutes remaining.10 REBUTTAL ARGUMENT OF PAUL D. CLEMENT11 ON BEHALF OF PETITIONER THE UNITED STATES12 MR. CLEMENT: Thank you, Mr. Chief Justice. 13 If I could first address the argument that is14 advanced by respondent that we can solve the15 extraterritorial arrest problem by simply insisting on16 there being consent. I think this Court in its first17 Alvarez-Machain opinion at footnote 16 made the point that18 there are some issues that are best dealt with in19 diplomatic relations between countries and not in the20 courts of a single party.21 And I think consent for an extraterritorial22 arrest is a prototypical example of that. In diplomatic23 relations between countries, a certain amount of ambiguity24 can make the diplomatic relation function and so there may25 be varying degrees of consent.





1 In the context of a United States judicial2 proceeding, though, the tendency is to bore down and find3 out whether there was some modicum of consent, some legal4 standard of consent. And I would point again to the5 example of Mir Aimal Kasi as how having courts bear down6 and figure out the exact extent of consent between7 Pakistan and FBI agents in 1997 would not have been a8 productive exercise for the courts. 9 A very brief note on the Ker opinion, Ker10 against Illinois that was just mentioned at the closing of11 respondents' argument. It's true the Court said that12 there might be an action for kidnapping in that case, but13 this Court did not opine in any way what would be the14 relevant law in that kidnapping that occurred in Peru. I15 would suggest if it had looked at that issue, it would16 have suggested that the law that applied would be the law17 of Peru in the same way that if there is any law that18 applies to the false arrest here, it is the law of Mexico19 and that only underscores that this arrest, even if it20 were actionable somehow, would fall within the foreign21 country exemption to the Federal Tort Claims Act.22 If I could say two things about section 1350. 23 The -- first of all, in terms of trying to divine exactly24 what was in Congress' mind when it enacted this provision25 in 1789, I would say that that is exceedingly difficult





1 and that strongly suggests that what the Court should do2 is simply apply its rules for when there is a cause of3 action. But if there is any agreement at all as to what4 at least one of the events that led to the passage of the5 statute was, it was the events involving ambassadors in6 the United States and violations and assaults on those7 ambassadors. And I think the reaction to those assaults8 is telling. 9 First, there were no civil actions ever brought10 in the courts that anybody is aware of to remedy those11 actions. What were brought are common law criminal12 actions. That's what the Longchamps case in Pennsylvania13 was. It was a common law criminal action. 14 Now, I don't think anybody would suggest that a15 common law criminal action in law of nations somehow16 survives this Court -- this Court's decision in Hudson,17 saying there's no longer any common law criminal18 jurisdiction. In the same way, to the extent that the19 Court -- the Congress may have had in mind some general20 common law action that was available, there's no21 particular reason why that decision should withstand the22 Erie decision.23 But again, I think it is noteworthy that there24 was no civil action in response to those incidents. What25 there was is the 1781 Continental Congress action, and it





1 just didn't ask the court -- the State courts to do2 something about this. It told the courts to authorize3 actions. The one court -- the one State that took up the4 challenge was Connecticut, and if you look at what5 Connecticut did, it is very telling because first they put6 in a jurisdictional provision. Then as a separate7 provision, they used language that is rights-conferring8 language. It seems obvious that Congress with section9 1350 did the former but not the latter. There is10 jurisdiction, but there is not any rights-creating11 language. 12 Now, it may be a bit anomalous to apply this13 Court's current conception to an old statute like the14 Judiciary Act of 1789, but this Court has done it before.15 Thank you. 16 CHIEF JUSTICE REHNQUIST: Thank you, Mr.17 Clement.18 The case is submitted. 19 (Whereupon, at 12:31 p.m., the case in the20 above-entitled matter was submitted.)2122

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